AFTAB AHMED GORAR, J. Applicants Fareed Ahmed son of Sanaullah and Muhammad Ramzan son of Muhammad Kareem seek bail after arrest in case Crime No. ASO-179/2021-HQ, under sections 6/7/8 and 14 of Control of Narcotic Substances Act, 1997, punishment for which is provided under sections 9(c) and 151 ibid PS MCC (E&C) NMP WHARF, Karachi.
2. Record shows that bail application filed by the applicants before the Special Court-II (CNS)
Karachi was rejected by order dated 14.06.2022, hence this bail application.
3. Pithy facts unveiled from the FIR are that a huge quantity of methamphetamine i.e. 2.500 Kgs, concealed in cavity specially designed for concealment from the down side of the bus, was recovered during investigation, the accused was found involved in commission of offence and were arrested.
4. Arguments advanced by learned counsel for the applicants and Special Prosecutor Customs are considered and record has also been perused.
5. Learned counsel for the applicants argued that applicants have falsely been implicated in this case with mala fide intention and ulterior motives and they have no nexus with the recovered contraband. He further argued that there is no evidence against the applicants and there are contradictions in the evidence brought by the prosecution. He contended that there is also violation of section 103, Cr.P.C. as no private person associated to act as Mashir of recovery and arrest of the applicants which makes the case of applicants of further enquiry. Lastly,' learned counsel for the applicants prayed that applicants may be admitted to bail as the applicants are not previously convicted, hardened and disparate criminals. To support his contentions learned counsel for applicants placed reliance upon the cases of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others (1996 SCMR 1845), Mst. Nadia v. The State (2012 PCr.LJ 599), Amanat Ali and 2 others v. The State (2008 SCMR 991), Qaisarullah and others v. The State (2009 SCMR 579), Hen Nawaz v. The State {2020 SCMR 687), Hussain Shah and others v. The State (PLD 2020 Supreme Court 132), Naveed v. The State (SBLR 2019 Sindh 1180), Adnan Prince, v. The State and another (PLD 2017 Supreme Court 147), Kamran Shah and others v. The State and others (2019 SCMR 1217), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), Faizan Ali v. The State (2019 SCMR 1649), Abid Mehmood and others v. The State (2017 SCMR 728), Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733), Muhammad Saeed Mehdi v. The State and 2 others (2022 SCMR 282) and Muhammad Ijaz v. The State (2022 SCMR 1271).
6. Conversely, the learned Special Prosecutor Customs opposed the concession of bail to the applicants on the ground that the applicants were arrested on spot and they are involved in a crime which is a crime against society. Learned Prosecutor has emphatically submitted that it is settled that4 the bail stage the appreciation of facts in depth cannot be considered and the court at the bail stage has to look into the material available on the record, to determine the involvement of the accused in the commission of offence. Learned Assistant Attorney General has adopted the arguments of learned Special Prosecutor Customs.
7. Admittedly the applicants are working as Munshi/Cleaner at the bus stand at Lea Market Karachi and must have knowledge of secret cavities of the bus and the articles lying therein thus at this stage their involvement in trafficking the narcotics cannot be ruled out. Record shows that prior to filing the instant bail application, the applicant Muhammad Ramzan had also filed Criminal Bail Application No. 1453 of 2021 which was dismissed by this court vide order dated 06.09.2021 and this is his second bail application before this court on same grounds as were averred in the above mentioned bail application. During the course of the arguments learned counsel for the applicants had appraise the court that the Driver of the said bus had expired in April 2022 while he was in custody. The learned counsel for the applicants could not point out any mis-reading, non-reading of material and law available on the subject. No enmity, ill-will or grudge has been alleged against the prosecution witnesses; on the contrary, sufficient material has brought by the prosecution on the record. Case law cited by the counsel for the applicants is not attracting in the circumstances of present case. The larger interest of the public and State demands that in case of recovery of contraband stuff, the discretion under section 497 of the Code of Criminal Procedure should not be exercised liberally. The Apex Court in the case of The Slate v. laved Khan (2010 SCMR 1989) has made the following observations in a narcotic case:- "S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51(1)--- Recovery of narcotic substances---Bail, cancellation of---Death sentence---Narcotic substance weighing 5- 1/2 kilograms was recovered from accused who was granted bail by High Court---Validity---Case of accused did not fall within prohibitory clause of section 497, Cr.P.C., as the offence was covered by section 9(c) of Control of Narcotic Substances Act, 1997, providing for various sentences, which not only fell within prohibitory clause of section 497, Cr.P.C. but also attracted the bar contained in section 51(1) of Control of Narcotic Substances Act, 1997, which was specifically made applicable to those offences which provided for punishment of death sentence-- Approach of High Court releasing accused on bail was arbitrary, without application of mind and contrary to settled principles of law thus unsustainable---Supreme Court converted petition for leave to appeal into appeal and order admitting accused on bail was set aside and bail application before High Court was dismissed."
8. The Control of Narcotic Substances Act, 1997 consolidates and amends the law relating to narcotic drugs and psychotropic substances. It controls and prohibits the prosecution, processing and trafficking of these substances. It also lays progressive punishments for narcotic offences. It provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences.
Section 51 of the Act provides that bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. When the quantity of narcotics exceeds one kilogram, the case falls in Clause (c) of section 9 of the Act, for which death penalty or imprisonment for life has been provided. Similarly, the discretion under section 497, Cr.P.C. can also not be exercised with regard to offences punishable with death or imprisonment for life unless the Court at the very outset is satisfied that such a charge appears to be false or groundless. Even otherwise, it is settled that for deciding the bail application the court has to observe the tentative assessment and deeper appreciation of evidence is not required and it will not be fair to go into discussion about the merits of the case at this juncture. In this respect reliance is being placed on the eases of Saleh Muhammad v. The State (PLD 1986 Supreme Court 211) and The State v. Zubair and 4 others (PLD 1986 Supreme Court 163). So far as the contention of the learned counsel for applicants that the recovery was not witnessed by persons from public, it may be observed that section 25 F of CNS Act excludes the application of section 103, Cr.P.C.
9. It is not out of context to mention here that such activities are giving the country bad reputation in the international community of nations. Learned counsel for the applicants through his exhaustive and elaborate arguments wanted this Court to give its categorical and specific verdict regarding the applicants that he is not involved in the commission of offence under the. Control of Narcotic Substances Act, 1997. He placed reliance on the judgments of this Court as well as the Apex Court favouring him in this regard. But this Court is very much clear in its mind that no such precise verdict in criminal cases can be given as every criminal case has its own facts and circumstances.
10. Death of one of the co-accused is not a ground for seeking bail as it is settled principle of law that each case has to be considered, on the facts and circumstances of each case and on its own merits. Red-handed arrest of the applicants with a considerable quantity of lethal contraband, confirmed by a positive Chemical report prima-facie connects the applicants with the alleged crime. The word "possession" had been used in the Control of Narcotic Substances Act, 1997 in wider sense so as toll include transport, dispatch and delivery. Applicants' claim of false implication is an issue that cannot be attended without going beyond the scope of tentative assessm ent, a venture prohibited by law. The guilt or innocence of the applicants is yet to be established as it would depend on the strength and quality of the evidence produced/to be produced by the prosecution and the defense before the trial Court. Therefore, it is clarified that the observations made herein are tentative which shall not prejudice the case of either party or shall influence the trial Court in any manner in deciding the case strictly on merits under law.
11. In 'view of the above, the instant bail application is dismissed with direction to the Trial Court to conclude the trial of the subject case as early as possible strictly under the law. A report shall be submitted to the MIT-II of this Court. Let this order be communicated to the trial Court for compliance.